Carty v. State

179 So. 2d 333, 43 Ala. App. 57, 1965 Ala. App. LEXIS 296

• Court: Alabama Court of Appeals
• Decided: August 17, 1965
• Status: Published

Opinions

CATES, Judge.

This appeal from denial of habeas corpus was submitted May 6, 1965.

The appellant was originally convicted on his plea of guilty. However, since he had no lawyer at arraignment, the trial judge, on coram nobis, later set the judgment aside and ordered another trial. Pending his new trial, he is now in the Jefferson County jail in default of bail.

The appellant seeks to stay his again being brought to book on the six pending indictments. He would try to carve out of a procedural error — albeit of constitutional proportions ¹ 2 — a vested right of immunity from further prosecution.

No court has adjudged that any of the indictments against Carty is void. See 21 Am.Jur.2d, Crim.Law, § 209.

Moreover, “legal” (reasonable probable) cause of detention² — not the validity of an indictment — is the issue on habeas corpus. Code 1940, T. 15, §§ 24 and 29.

Double jeopardy, if any, can be claimed by special plea. Circuit Ct. Rulé 30, 1st sent.; Code 1940, T. 15, § 288.

The judgment below is due to be

Affirmed.

1 . Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

2 . The Federal courts accord State prosecutors a reasonable time to retry successful petitioners for habeas corpus. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Wiman v. Powell, 5 Cir., 293 F.2d 605; Wiman v. Argo, 5 Cir., 308 F.2d 674, 676. 28 U.S.C. § 2243, last paragraph provides: “The court shall * * * dispose of the matter as law and justice require.” Of. Holdsworth, History of English Law, IX 118.